In Depth

The 7th Circuit Court of Appeals has affirmed an Indiana District judge's decision that an employee on family medical
leave doesn't accrue those hours for benefits and can be fired for violating attendance policies.

The decision comes in Michelle L. Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539,
which involves a Family and Medical Leave Act dispute out of the Northern District of Indiana's South Bend Division. U.S.
Judge Philip Simon had granted summary judgment for the employer, which had used its "no-fault attendance policy"
to fire Bailey for absenteeism during a 12-month period.

She claimed two absences in July 2006 were allowed through the FMLA and couldn't be used in the firing decision, but
her employer disagreed that those absences were covered because she hadn't actually worked 1,250 hours the previous year
in order to be eligible for FMLA time off. Bailey argued that her time off in the preceding year should have been credited
and not counted toward the attendance policy.

"There is no basis for such a contortion of the statute - no hint in the statute or elsewhere that Congress envisaged
and approved such a circumvention of the requirement than an applicant for FMLA leave have worked 1,250 hours in the preceding
12 months," 7th Circuit Judge Richard Posner wrote. "We can't find a case directly on point, but are supported
in our conclusion by the refusal of courts including our own to interpret the statutory term 'service' in an expansive
fashion that would dilute the 1,250-hour requirement."

The 7th Circuit also addressed another of Bailey's arguments: that Pregis Innovative Packaging retaliated against her
for taking FMLA leave by not wiping clean some of her past absences at the end of a 12-month period. The issue was whether
this counts as an "employment benefit" as defined by the FMLA. Weighing both a Department of Labor position on the
issue and specific caselaw, the 7th Circuit decided that these absenteeism point removals should be considered an employment
benefit.

However, Bailey doesn't get any benefit from this decision because the court has held that an employee can't accrue
any employment benefits during any period of leave.

"An employee must not be penalized by being deprived, just because he is on family leave, of a benefit that he has earned
(i.e., that has been accrued to him)," Judge Posner wrote. "But by the same token he cannot, when on family leave,
accrue benefits that accrue only by working."

The defendant's no-fault attendance policy is a lawful way to determine whether an employee has, despite absences, a
sufficiently strong commitment to working for that employer, the court found. Bailey didn't show that commitment in this
case, and the District judge's decision is affirmed.